The following case was a criminal case before the Ontario Superior Court of Justice. The accused J.P. is change with five counts of sexual assault against give separate complainants. The offences are alleged to have taken place in the workplace of J.P. and each of the five complainants, Sunnyside Home, a long-term care facility owned and operated by the Regional Municipality of Waterloo in the City of Kitchener.

Basic Principles to be observed in this case relate to reasonable doubt, defined as “the existence or non-existence of reasonable doubt is to be based on the totality of the evidence. It is not necessary for the Crown to prove each individual piece of evidence beyond a reasonable doubt”.

The alleged sexual assault occurred between August 2011 and November 2014 and involved five separate individuals.

Therefore, the Justice states that:

The paramount question is whether, on the whole of the evidence, I am left with a reasonable doubt about the guilt of the accused. That is the central consideration before me. A verdict of guilt must not be based on a choice between the evidence of the accused and the Crown’s evidence, as such as approach would undermine the presumption of innocence and the requirement of proof beyond a reasonable doubt.

The term “sexual assault” is not defined in the Criminal Code, however, in the seminal case of R. v. Chase [1987], the Supreme Court of Canada stated that sexual assault is an assault, within any one of the definitions of that concept in what is now s. 265(1) of the Criminal Code, which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated.

Noted was that consent is often a central focus in cases of sexual assault, however, in this case consent is not a focus, because J.P. asserts that the incidents for which he has been brought up on charges for, did not occur.

Questions to be Determined and Findings

All of the questions within this section are the same, the Justice is weighing whether there is reasonable doubt to the claim of sexual assault by J.P. against each of the complainant.

In count one, is the court satisfied beyond a reasonable doubt that J.P. sexually assaulted the complainant T.B.? (YES)

In count two, is the court satisfied beyond a reasonable doubt that J.P. sexually assaulted the complainant H.S.? (YES)

In count one, is the court satisfied beyond a reasonable doubt that J.P. sexually assaulted the complainant L.H.? (NO)

In count one, is the court satisfied beyond a reasonable doubt that J.P. sexually assaulted the complainant L.B.? (YES)

In count one, is the court satisfied beyond a reasonable doubt that J.P. sexually assaulted the complainant K.S.? (NO)

Analysis

In count one with respect to complainant T.B., the Crown points to six incidents reported by the complainant as constituting sexual assault:

Tugging on T.B.’s top to light it up to look at her stomach;

Tugging on T.B.’s shirt to look at her tattoo above her left breast;

Pulling up T.B.’s shirt and tugging on her pants to see what kind of underwear she was wearing;

Pushing up against T.B. in a resident’s bathroom, on more than one occasion and holding her hips;

Untying the strap ties on T.B.’s scrub top, typing her hands behind her back and pushing himself against her; and

Grabbing T.B.’s breasts and buttocks over her uniform during a power outage.

The Crown proved beyond a reasonable doubt that the incidents took place. T.B. did not waiver on cross examination and the defense presented no reason why T.B. would fabricate the complainant against J.P., noting that they worked together infrequently. Noting that although there was discrepancies in the account to police and that presented at trial in terms of the frequency, it was noted that this related only to detail and did not undermine the core of the evidence.

Furthermore, when T.B. first began working with J.P. he created a sexualized environment due to comments of a sexual nature, this provided context for the sexual aspects of the touching and constitutes sexual assault under the Criminal Code.

In count two with respect to complainant H.S., the Crown points to three alleged incidents reported by the complainant as constituting sexual assault:

Pulling H.S.’s scrub top to the side over her shoulder to observe her tan line;

Pulling up H.S.’s scrub top from behind and commenting that he was trying to see whether her pants were see-through; and

Kissing her on the top of her head after she gave him cookies and coffee.

J.P. admitted to kissing H.S. on the head after he leaned in to dispose of his cookie wrapper but denies the other incidents of touching.

As with T.B., H.S. did not waiver and there was no evidence to suggest that H.S., who considered J.P. a friend would fabricate such allegations. Further it was found that upon cross-examination, J.P. did admit to pulling on the complainant’s top.

In regards to the first alleged incident, it was stated that it was inappropriate within the workplace, but because it did not rise to the level of being visible to a reasonable observer as sexual assault, it was note that the Justice was left with reasonable doubt that it rose to the level of criminal sexual assault.

The second alleged incident does constitute a sexual assault under the criminal code and is the only incident that a count of guilty is found.

In count three with respect to complainant L.H., the Crown states that the incident being brought forward is an allegation that J.P. placed his hands on her hips and pressed his body against hers. The court found that this incident did occur, but that it did not violate L.H.’s sexual integrity because as described, it was brief, he did not move his hands and it was his upper body torso and not his lower body that pressed against L.H. Noting, that the incident may have caused discomfort for L.H. but does not rise to the level of criminal sexual assault.

In count four with respect to complainant L.B., the Crown presented two alleged incidents by the complainant as constituting sexual assault:

J.P. pressing his genitalia area against her, and

J.P. grabbing her buttocks.

L.B. stated that these both occurred on the same shift. The evidence presented by L.B. was consistent and did not waiver in cross-examination. As L.B. and J.P. rarely worked towards and hardly knew one another the court concluded that there was no reason L.B. would make such accusations without cause. The first incident cannot be proved within a reasonable doubt, as L.B. said that she was not fully aware whether he did it or not. The second however the Crown did prove beyond a reasonable doubt that it occurred and that it did violate L.B.’s sexual integrity and therefore constitutes a sexual assault.

In count five with respect to complainant K.S. the Crown points to two alleged incidents reported by the complainant as constituting sexual assault:

Forced penetration, and

Having masturbated in front of K.S.

With respect to these two instances, J.P.’s testimony was straightforward and non-evasive and his evidence that both of the incidents did not occur was not undermined on cross-examination. Given the other testimonies, the place of employment was a busy and hectic environment and that it did not appear there would be a time for the two incidents to occur without another employee or resident witnessing the incident. Due to inconsistencies in K.S.’s police report and testimony, the court was left with reasonable doubt as to the guilt of J.P. and therefore there was a finding of not guilty.

Outcome

The Justice cited, “for the foregoing reasons I find the accused guilty of sexual assault in reference to counts one, two, and four of the indictment and not guilty in reference to counts three and five of the indictment.”